Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Judge Backs Student in Suit Over 'Day of Silence'

School officials likely violated the First Amendment free-speech rights of a Florida student when they barred her from engaging in a silent protest against anti-gay bullying, a federal district judge has ruled.

The judge refused to dismiss most of a lawsuit brought by Amber Hatcher, a student at DeSoto County High School in Arcadia, Fla., over her efforts to organize participation last spring in the Day of Silence. That event, sponsored by the New York City-based Gay, Lesbian, and Straight Education Network, involves students remaining silent at school to draw attention to anti-gay, lesbian, bisexual, and transgender bullying and harassment.

Hatcher says in her lawsuit that she sought an OK from her principal in advance of last year's Day of Silence for her and other students to participate by remaining silent except when called on in class, wearing nonvulgar shirts related to the event, and passing out literature. The suit alleges that the principal of DeSoto High refused to approve the students' participation and told them that "peaceful protests are against district policy."

The suit led to the discovery of emails showing that the district superintendent backed up the principal and referred to the policy against student protests, court documents show.

Hatcher and one other student were suspended after they attempted to participate in the Day of Silence with shirts and "tags" addressing anti-gay bullying and by remaining silent in school. School officials have said Hatcher was suspended because she was disruptive after being called to a dean's office.

When Hatcher, currently a sophomore, asked the principal in January about participating in this year's Day of Silence, which is scheduled nationally for April 19, she was told that she could not, her suit says.

With the aid of Lambda Legal, a gay-rights organization, Hatcher and her parents sued the district and school officials alleging a violation of the student's First Amendment speech rights and her 14th Amendment equal-protection rights. The defendants asked that the suit be dismissed, including on the basis of qualified immunity for the principal.

In two written opinions on April 5 in Hatcher v. DeSoto County School Board, U.S. District Judge John E. Steele of Fort Myers, Fla., allowed most of the student's suit to go forward, but he declined to issue a preliminary injunction against the district on the basis that its lawyers asserted in a hearing that Hatcher and other students would not be barred from participating in the Day of Silence next week.

Hatcher has "satisfactorily alleged, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all 'protest' speech at the Desoto County schools that is contrary to the school district's written policy and the First Amendment," Judge Steele said in his opinion rejecting most of the motion to dismiss. (The judge agreed to dismiss claims under the equal-protection clause.)

"A blanket policy against 'protest' speech of any description is incompatible with longstanding First Amendment principles," the judge added

In a separate order, Judge Steele declined Hatcher's request for a preliminary injunction that would bar school officials from infringing on students' First Amendment rights. Hatcher's lawyers argued that as recently as January the student was told she could not participate in this year's Day of Silence.

But the judge noted that the school district's lawyers asserted that Hatcher would be allowed to engage in all the conduct she sought to engage in last year. And there has been turnover in both the principal's and superintendent's office, the judge noted.

"The court has no basis to believe that the school board's counsel has misled the court in his representation, or to believe the school board will not honor the position its authorized legal representative has articulated," Judge Steele said.

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